Separation of powers – US Supreme Court

With so much discussion having taken place over the efficacy of removing the UK’s highest court from its legislature, it is interesting to note that the issue does not appear to have been finally resolved in the United States despite its written constitution and a separate court with a long and distinguished history.

The New Yorker magazine has an interesting piece regarding the attendance of the justices from the US Supreme Court at President Obama’s State of Union address last night.

The piece notes that Justices Breyer and Stevens take different views regarding attendance at the address with Breyer attending on the ground that the Court needs to show the country that it is part of the government and Stevens staying away on the ground that the independence of the judiciary requires detachment. (To the extent this is correct, one might have thought that two such senior judges might in fact have concluded that their views on these two perhaps weighty but probably uncontroversial issues could have been taken for granted – or failing that stated expressly – rather than left to the vagaries of inferences arising or not from their respective presence or absence at the occasion.)

The piece also highlights (and includes a video of) the response of Justice Alito to the reference by the President to the Court’s recent decision in Citizens United v. FEC (for a typically insightful analysis on the judgment, see Johann Hari’s piece here) where the Court struck down various restrictions on electoral finance in the United States and notes the political nature of the Justices and the particular animus between Alito and Obama.

With our more cloistered tradition, it is hard to imagine such a scene developing over here. But maybe with the new independence of our Supreme Court and the arguably emboldening of the Justices on it, this is what lies in store. .